[2017] KEELC 1597 (KLR)
The court did not make a substantive determination on the preliminary objection or the merits of the application. Instead, by consent of the parties, the preliminary objection was withdrawn and the interim orders previously granted were maintained as the status quo pending the hearing and determination of the suit....
Source-derived case information.
- Citation
- [2017] KEELC 1597 (KLR)
- Parties
- Plaintiff: Prof. Micheni Muchai, Isaac Muguna, Murithi Muchungu, Rhoda Njagi, Francis Kaburu, Gibson Njeru Ntwiga (as officials of Ntuneni Self Help Group); Defendant: Ntuneni Irrigation Farmers Co-operative Society Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 223 of 2017
- Procedural Posture
- Environment and Land Case / Interlocutory Application and Preliminary Objection Ruling
- Outcome
- Consent adopted as order of the court; preliminary objection withdrawn; interim status quo orders maintained pending hearing.
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Jurisdiction of Courts, Cooperative Societies Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof. Micheni Muchai, Isaac Muguna, Murithi Muchungu, Rhoda Njagi, Francis Kaburu, Gibson Njeru Ntwiga (as officials of Ntuneni Self Help Group)
Plaintiff
Ntuneni Irrigation Farmers Co-operative Society Limited
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application and Preliminary Objection Ruling
Legal Issues
- 1 Whether the court has jurisdiction to hear and determine the dispute between the parties in light of Section 76 of the Co-operative Societies Act.
- 2 Whether interim injunctive relief should be maintained pending the hearing and determination of the suit.
Ratio Decidendi
The court did not make a substantive determination on the preliminary objection or the merits of the application. Instead, by consent of the parties, the preliminary objection was withdrawn and the interim orders previously granted were maintained as the status quo pending the hearing and determination of the suit. The court adopted the consent as its order, directing compliance with pre-trial procedures and setting the matter for mention to confirm compliance and fix a hearing date. The court thus preserved the status quo and deferred substantive adjudication of jurisdiction and injunctive relief to the full hearing.
Court Disposition
Consent adopted as order of the court; preliminary objection withdrawn; interim status quo orders maintained pending hearing.
Orders
- The Notice of Preliminary Objection dated 18.5.2017 is marked as withdrawn with no order as to costs.
- The Notice of Motion application dated 23.3.2017 is disposed of in the terms that status quo in terms of the interim orders granted on 27.3.2017 be maintained pending the hearing and determination of the suit and parties to maintain peace.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 223 OF 2017
PROF. MICHENI MUCHAI
ISAAC MUGUNA
MURITHI MUCHUNGU
RHODA NJAGI
FRANCIS KABURU
GIBSON NJERU NTWIGA
ALL SUING AS OFFICIALS OF NTUNENI SELF HELP GROUP…............…PLAINTIFFS
VERSUS
NTUNENI IRRIGATION FARMERS CO-OPERATIVE SOCIETY LIMITED....DEFENDANT
RULING
1. This ruling relates to an application dated 23rd March, 2017 filed by the plaintiff and to a Notice of Preliminary Objection dated 18th May, 2017 filed by the defendant.
2. The plaintiff’s application dated 23rd March, 2017 seeks orders:
1. THAT this Honourable court be pleased to certify this application urgent and proceed to hear the same ex-parte at the first instance.
2. THAT this Honourable court be pleased to issue a temporary order of injunction restraining the defendant / applicant, its agents, servants and / or employees, or whomsoever else acting on the defendant / respondent’s behalf or instructions from taking over, grabbing, attempting to manage, control, run or purport to operate, or in any other manner whatsoever dealing with or interfering with the plaintiff / applicant’s management, running, controlling and / or operating of that water project known and / or described as NTUNENI SELF HELP GROUP WATER PROJECT, pending the interparties hearing of this application and thereafter as the court shall order.
3. THAT this Honourable court be pleased to issue an order of injunction restraining the defendant / respondent, its agents, servants and / or employees or whomsoever else acting on the defendant / respondent’s behalf or instructions from taking over, grabbing, attempting to manage, control, run, or purport to operate, or in any other manner whatsoever or however dealing with or interfering with the plaintiff / applicant’s management, running, controlling and / or operating of that water project known and / or described as NTUNENI SELF HELP GROUP WATER PROJECT, pending the hearing and determination of this suit.
4. THAT the order being sought for herein once issued, be served upon the respondent and also upon the O.C.S. NTUMU POLICE STATION for purposes of ensuring and supervising enforcement and compliance thereof.
5. THAT the costs of this application be costs in the cause.
3. The defendant’s Preliminary Objection dated 18th May, 2017 states as follows:
NOTICE OF PRELIMINARY OBJECTION
1. That this court lacks jurisdiction to hear and determine this matter.
2. That the dispute in this case is one which should be dealt with by the Co-operative Tribunal pursuant to the provisions of Section 76 of the Co-operative Societies Act.
3. That the provisions includes (sic) all matters between a co-operative society and a member, a past member and a deceased member.
4. The legislature intended that the Co-operative Tribunal be the first level of dispute resolution with appeal lying in the High Court.
5. That if parties are permitted to lodge claims covered by Section 76 of the Act to the High Court, this will deny them their day in the High Court at the appellant level.
4. On 10th October, 2017, the parties proffered a consent which is in the following terms.
CONSENT
“By consent of the parties and their respective advocates
1. The Notice of Preliminary Objection dated 18. 5.2017 be and is hereby marked as withdrawn with no order as to costs.
2. The Notice of Motion application dated 23. 3.2017 be disposed of in the terms that status quo in terms of the interim orders granted on 27. 3.2017 be maintained pending the hearing and determination of the suit AND parties to maintain peace.
3. The parties to fully comply with order 11 C.P.R. within 14 days.
4. The matter be mentioned to confirm compliance and taking of a hearing date.”
5. The consent is properly signed by the advocates representing the parties.
6. This consent is adopted as an order of this court.
7. The plaintiff is ordered to fully comply with order 11, CPR, within 7 days of today.
8. The defendant is to fully comply with order 11, CPR after receipt of the plaintiff’s compliance documents.
9. Directions are to be issued on 31. 10. 2017
Delivered in open court at Chuka this 10th day of October, 2017 in the presence of:
CA: Ndegwa
Manasses Kariuki present for plaintiff
Nyakwara present for the defendant
P. M. NJOROGE
JUDGE